2012 law to handle illegal border crossers sits idle as calls for action persist

Provisions enacted by the previous Conservative government to handle illegal border-crossers are gathering dust as pressure persists on the Liberals for a response to waves of new asylum seekers.

But even as the Conservatives, now in Opposition, insist the government do something to deal with an influx of people improperly crossing into Canada to seek asylum, they've stopped short of calling for their own particular law to be the one enforced.

And in doing so, they've markedly shifted their tone from the days many Conservatives rushed to paint all illegal border-crossers as bogus asylum claimants eager to take advantage of Canadians.

"I'm very touched by what I'm looking at," said Quebec Conservative MP Gérard Deltell of the images of people coming across the border in the freezing cold, being assisted by the Mounties.

"But we also have to send a clear signal all around the world, for all of those who wish, would dream to come here in Canada and to live in Canada, that we must respect the procedure and we must respect the law."

The government is respecting the law, both the Liberals and immigration experts say — the one that gives anyone in Canada the right to make a claim for asylum, a right upheld repeatedly by the courts.

Except you have to get here first, and that's become the political sticking point.

What appears to be a sudden influx of people illegally crossing into Canada — as many as 22 on a single night last week — is being pinned on the Safe Third Country Agreement with the U.S., which stipulates that those who cross into Canada from the U.S. at an official border point won't be allowed to make an asylum claim because they should have lodged one in the U.S.

In the aftermath of U.S. President Donald Trump's executive order pausing immigration from certain countries and refugee resettlement generally, there were immediate calls for Canada to suspend the deal on the grounds the U.S. was clearly no longer a safe place for asylum seekers.

The Liberals continue to say that's uneccessary as the asylum system in the U.S. is still functioning. As well, they say, the number of illegal crossings at the border is not actually that high.

Yet, public pressure exists for action, ranging from help for the communities seeing the influx to new legislation or more officers to patrol the border.

"We monitor that constantly to make sure that (we've) got the resources necessary to deal with situations as they evolve," Public Safety Minister Ralph Goodale said Wednesday.

The pressure opens up political room to suspend the deal, said Sharry Aiken, a law professor specializing in immigration at Queen's University in Kingston, Ont.

It wouldn't be seen a judgment of the U.S. but more of an attempt to restore order to Canada's refugee system and stop the haphazard and dangerous system of illegal migration, she said.

It's a potentially winning approach as well because the single other legislative tool currently available is potentially more politically unpalatable: the measures introduced by the Conservatives in 2012 to respond to asylum seekers arriving by boat off the coast of British Columbia.

The measures give the minister of public safety broad discretion to declare any group of two or more refugee seekers "designated foreign nationals" deemed part of an "irregular arrival."

That in turn sets into motion mandatory detention for up to two weeks, and potentially for months after that. Then, even if the claims are validated, individuals are still restricted from things like sponsoring family members or getting Canadian travel documents for up to five years.

Aside from the arrival of the two ships, the measures have been used only one other time, to respond to waves of Romanians arriving illegally in Canada in 2012.

While in theory the measures could be used now, they or any other new law won't make a difference, said Efrat Arbel, a law professor at the University of British Columbia who has researched Canada-U.S. border issues extensively.

"Enacting a new law or new measures is not going to address the fact we have partnered with a country we have deemed to be safe and is currently not safe for refugees," she said.

"The only real viable option is suspending the agreement."